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en-usTechdirt. Stories filed under "evidence"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Wed, 18 Feb 2015 15:48:40 PSTState Attorney Won't Reopen Questionable Investigation Unless Questionable Law Enforcement Agencies Provide The EvidenceTim Cushinghttps://www.techdirt.com/articles/20150211/11244229989/state-attorney-wont-reopen-questionable-investigation-unless-questionable-law-enforcement-agencies-provide-evidence.shtml
https://www.techdirt.com/articles/20150211/11244229989/state-attorney-wont-reopen-questionable-investigation-unless-questionable-law-enforcement-agencies-provide-evidence.shtml
In May 2012, Seth Adams pulled into the parking lot of the gardening store his family owned. A few minutes later, he was dead, shot by an undercover cop who had been sitting in an unmarked vehicle in the store's parking lot. The officer, Michael Custer, claimed Adams was "drunk and belligerent" and that he "feared for his life." He also claimed Adams reached into the cab of his pickup, presumably to grab a weapon, and that's when he opened fire.

Palm Beach County Sheriff Ric Bradshaw made it clear from the start that he had no intention of investigating the incident impartially. Referring to Adams, Bradshaw at one point told local media, “Why he decided to assault the deputy? We may never know that.” When the Florida Department of Law Enforcement (FDLE) began a state investigation, Bradshaw added that he was confident the results would “verify exactly what I thought from the beginning.”

And the Sheriff's Department began taking steps to ensure the investigation wouldn't have any other outcome. Police seized surveillance video captured by the store's cameras and then claimed no recording of the incident existed. Forensic evidence suggesting Custer's narrative was flawed was produced (a trail of blood beginning at the back of the pickup, rather than by the cab where Custer claimed Adams was reaching for a weapon), but the officer was ultimately cleared of any wrongdoing.

This led to a lawsuit filed by Adams' family. Nearly two years later, and the obstruction of justice still hasn't stopped. New evidence has been obtained by the family's lawyer, but the state's attorney isn't interested in re-opening the closed FDLE investigation The new information is a scathing Sheriff's Office review of Sgt. Michael Custer, who was deemed incapable of "making sound decisions under pressure." Despite this review, Custer was allowed to retain control of an elite tactical unit.

This review was never turned over to the FDLE by the Sheriff's office.

“An FDLE investigator even asked for Custer’s employee evaluations but was told they didn’t exist.”

"First thing I want to make clear on with the Seth Adams investigation is that was closed out during a prior administration," said State Attorney for the 15th Judicial Court, Dave Aronberg who was elected to the post in November, 2012.

So, there will no reopening of a flawed investigation in which the law enforcement agency being investigated hid information from investigators. That's the level of accountability State Attorney Aronberg is comfortable with. Oh, but it could be reopened, provided any new information comes from an Aronberg-approved source -- like the same agency that obstructed the original investigation.

State Attorney Aronberg and Anderson didn't say much more during the Q & A except that if new evidence comes into their office they could re-open the case.

Any new evidence would have to come from a law enforcement agency, not an attorney working a civil case.

Why isn’t the state’s attorney’s office investigating the sheriff’s department for reportedly lying about the existence of Custer’s employee evaluations? And why did FDLE investigators take the department at its word that those evaluations didn’t exist? An investigator for the Adams family was able to obtain them through an open-records request. Shouldn’t a state agency charged with investigating police shootings be a bit more skeptical of the targets of its investigations?

These are all questions Aronberg doesn't want to answer, so he's conveniently ensured he'll never be asked these questions again. And the Sheriff's Department that obstructed a state investigation will continue to employ an officer who's demonstrated he's a danger to himself and others and face no consequences for impeding an investigation by a state agency.

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]]>please-take-another-look-at-our-wrongdoing,-said-no-agency-everqhttps://www.techdirt.com/comment_rss.php?sid=20150211/11244229989Tue, 17 Feb 2015 20:54:47 PSTHubris Defined: Dumb Murderer Takes A Selfie With His Dead VictimTimothy Geignerhttps://www.techdirt.com/articles/20150209/06275029956/hubris-defined-dumb-murderer-takes-selfie-with-his-dead-victim.shtml
https://www.techdirt.com/articles/20150209/06275029956/hubris-defined-dumb-murderer-takes-selfie-with-his-dead-victim.shtmlcriminals, as we've demonstrated again and again, are idiots. Some criminals are dangerous idiots. And some, well, some are so evil it remains only to be thankful that their stupidity helps us to keep their asses behind bars where they belong.

Maxwell Marion Morton, 16, is being held without bail in the Westmoreland County juvenile detention center on charges of first-degree murder, homicide and possession of a firearm by a minor in connection with the death of Ryan Mangan. Police said the photo they received shows Mangan as he was found at the crime scene. A selfie of a suspect with a dead victim is a first for county District Attorney John Peck, who has been a prosecutor for more than 30 years.

“I've never seen it before,” Peck said, “but it was a key piece of evidence that led investigators to the defendant.”

Now, I know what you're all thinking: anyone who takes a selfie with the dead body of his victim is someone who wants to get caught, not an idiot. Well, you'd think that was the case, but it wasn't. Morton had sent the pic via Snapchat, believing that the deletion feature would protect him, somehow. The person he sent it to, however, saved it rather quickly, and it ended up in the hands of the police.

“(Police) received a copy of the photo which depicted the victim sitting in the chair with a gunshot wound to the face,” a police affidavit states. “It also depicts a black male taking the ‘selfie,' with his face facing the camera and the victim behind the actor. The photo had the name ‘Maxwell' across the top.”

Morton also allegedly sent text messages that read, “Told you I cleaned up the shells,” and “Ryan was not the last one.”

So, sometimes two plus two equals a very evil and very stupid person. Usually these kinds of dumb criminal stories are somewhat funny. This one just makes me happy that a murderer is behind bars.

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]]>cheeeeesehttps://www.techdirt.com/comment_rss.php?sid=20150209/06275029956Tue, 13 Jan 2015 06:15:00 PSTDOJ, Which Once Claimed James Risen's Testimony Was Necessary, Now Tries To Block Other Side From Using HimMike Masnickhttps://www.techdirt.com/articles/20150112/18103729678/doj-who-once-claimed-james-risens-testimony-was-necessary-now-tries-to-block-other-side-using-him.shtml
https://www.techdirt.com/articles/20150112/18103729678/doj-who-once-claimed-james-risens-testimony-was-necessary-now-tries-to-block-other-side-using-him.shtmlJames Risen saga is basically over, but ended in a bizarre way. As you hopefully recall, this case goes back many years, and involves the DOJ trying to convict Jeffrey Sterling, a former CIA official, of leaking info to Risen. However, Risen has made the compelling case that the DOJ's desire to involve him was an attempt to punish him for earlier work he'd done exposing questionable practices by the intelligence community -- and specifically to force Risen to give up a source, so that future whistleblowers can't trust him. This backfired massively, as Risen fought this entirely, promising never to give up his source, even as the issue went up the Supreme Court (which refused to hear the case), but technically ended with a court saying Risen had to give up his source. Risen still insisted that he would not, and he'd go to jail if he had to. This put Attorney General Eric Holder in a bit of a bind, as he'd promised not to put reporters in jail. Thus, last month, Holder blinked, saying the DOJ would not force Risen to give up his source. However, he was still supposed to testify, just not on that.

Mr. Risen’s under-oath testimony has now laid to rest any doubt concerning whether he
will ever disclose his source or sources for Chapter 9 of State of War (or, for that matter, anything
else he’s written). He will not. As a result, the government does not intend to call him as a
witness at trial. Doing so would simply frustrate the truth-seeking function of the trial.

This is true irrespective of whether he is called by the government or the defense—he is unavailable to
both parties. The law makes clear that testimony that is not subject to meaningful
cross-examination regarding non-collateral matters is antithetical to the purpose of a trial and
should be excluded.

And, specifically, please oh please, don't let Sterling's lawyers mention anything about all of this to the jury:

Moreover, since Mr. Risen is not available as a witness on the central issue in the case, the
defendant should be prohibited from commenting on Mr. Risen’s failure to appear or suggesting
that the government has failed to meet its burden because it did not call him as a witness.

In response, the judge refused the DOJ's request to declare Risen "unavailable" for both sides, and everyone's figuring out how to proceed, with Sterling's lawyers saying that they want to use earlier Risen testimony about how he had multiple sources for his book.

Either way, the DOJ comes out of this looking terrible, and James Risen has made it clear that, if you're a whistleblower, you certainly can trust him not to reveal who you are to the government...

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]]>funny how that workshttps://www.techdirt.com/comment_rss.php?sid=20150112/18103729678Wed, 7 Jan 2015 13:40:53 PSTAppeals Court Orders Government To Return Non-Child Porn Files To Convicted ManTim Cushinghttps://www.techdirt.com/articles/20150103/12585929589/appeals-court-orders-government-to-return-non-child-porn-files-to-convicted-man.shtml
https://www.techdirt.com/articles/20150103/12585929589/appeals-court-orders-government-to-return-non-child-porn-files-to-convicted-man.shtml
A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.

As the ruling notes [pdf link], the lower court failed in its duty to shift the burden of proof from the convicted man to the government.

The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the noncontraband files.

While keeping in mind that the government can raise legitimate concerns about the cost and difficulty of segregating data, the lower court allowed the government to make unsupported claims about the task at hand. While the government did file some paperwork along with its opposition to the release of the files, nothing it submitted bore relevance to the case at hand.

The government attached three exhibits to its opposition brief: (1) a document listing some of Gladding’s property the government found to be noncontraband; (2) email correspondence between counsel; and (3) the transcript of a hearing on a similar dispute in a different case. None of the exhibits established the burden or cost to the government of segregating contraband from noncontraband computer files.

Gladding hired a digital forensics expert who was able to retrieve a great deal of the non-criminal files, despite arguments from the government that doing so was technically unfeasible. But there were still some files left that Gladding wanted returned and, again, he was stonewalled by the government, with an assist by the district court, which muffed the "burden of proof" determination.

The district court did not expressly state whether Gladding or the government had the burden of proof on the motion. However, the parties impliedly concede the court put the burden on Gladding. And the district court’s brief analysis denying Gladding’s motion sheds light as to whom the district court thought should bear the burden of proof. The district court denied Gladding’s motion because it was “satisfied” by the government’s “representations” that it is “almost impossible to separate [the noncontraband files] out.”

But representations are not evidence, unless adopted by the opponent. The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a “legitimate reason” for retention of the noncontraband files. For that reason, the government could not have carried its burden of proof had the district court correctly placed it on the government. The district court’s decision not to put the burden of proof on the government was legal error.

This looks an awful lot like a deferral to the government -- contrary to the one of the main prongs of the judicial system: to act as a check against government overreach or misconduct. This failure may have only been an "error," but it's the sort of error that undermines the system's integrity.

There were multiple options available to the government to help mitigate the costs and difficulty of separating the data -- including passing those costs on to the requester -- but it was allowed to simply declare the effort to be too much trouble. By failing to shift the burden of proof, the court screwed Gladding and basically gave the government a pass to hold onto unrelated, non-criminal data for as long as it wanted to. Fortunately, the appeals court reversed the previous decision and forced the government to make an active effort to return the unneeded files. As it points out, child porn possession may be an odious offense, but a criminal's computer is rarely used solely for criminal activities.

Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person’s life can be lost in an instant.

Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography.

Even if the good and bad are intermingled, the non-offending files still belong to the convicted person. The potential loss of personal data isn't presumed to be part of the "consequences" of criminal behavior. The government's unchallenged assertions about the inseparable nature of Gladding's files effectively argue that convicted persons have no right to their own files, much less the expectation that non-criminal, non-investigative data will be returned to them when no longer needed.

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]]>files-not-forfeited-foreverhttps://www.techdirt.com/comment_rss.php?sid=20150103/12585929589Fri, 5 Dec 2014 18:19:00 PSTCanadian Law Enforcement Agency Dropping Cases Rather Than Deal With New Warrant Requirements For ISP Subscriber InfoTim Cushinghttps://www.techdirt.com/articles/20141130/20421229281/canadian-law-enforcement-agency-dropping-cases-rather-than-deal-with-new-warrant-requirements-isp-subscriber-info.shtml
https://www.techdirt.com/articles/20141130/20421229281/canadian-law-enforcement-agency-dropping-cases-rather-than-deal-with-new-warrant-requirements-isp-subscriber-info.shtmlmore information from law enforcement: law enforcers suddenly seem less interested in zealously enforcing the law.

In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

Prior to the court decision, the RCMP and border agency estimate, it took about five minutes to complete the less than one page of documentation needed to ask for subscriber information, and the company usually turned it over immediately or within one day.

Five minutes! Amazing. And disturbing. A 5-minute process indicates no one involved made even the slightest effort to prevent abuse of the process. The court's decision has dialed back that pace considerably. The RCMP is now complaining that it takes "10 hours" to fill out the 10-20 pages required to obtain subscriber info. It's also unhappy with the turnaround time, which went from nearly immediate to "up to 30 days."

In response, the RCMP has done what other law enforcement agencies have done when encountering a bit of friction: given up.

"Evidence is limited at this early stage, but some cases have already been abandoned by the RCMP as a result of not having enough information to get a production order to obtain (basic subscriber information)," the memo says.

The RCMP also points out that the 30-day response period will sometimes outlast the 30-day IP log retention period, resulting in information being destroyed before the agency can access it. It also notes that it's facing a bit of backlash in the wake of the Supreme Court's decision.

Banks, hotels, and car rental companies are reviewing the Supreme Court decision and "a few have signalled less voluntary co-operation" in future.

Yeah, that's a shame. But it seems to be a feeling that's becoming increasingly common as the pendulum swings back towards protecting the rights of the public. Several companies have spent years being forced to play the submissive part in this involuntary relationship, handing out an endless number of "how highs" in response to the government's "jump!" orders. "Less voluntary" is what the future holds for intelligence agencies and law enforcement alike.

If the RCMP is dropping cases because it doesn't have enough put together to "fulfill the requirements" of its warrant paperwork, then it really doesn't have enough of a case put together to be demanding that third parties turn over information related to the suspect. It's that simple. The cases it has dropped obviously aren't strong enough to justify attempts to gather more information. The warrant requirement is going to turn the RCMP into a better law enforcement agency -- one that doesn't pursue certain investigations just because they're easy. This forces the RCMP to better evaluate its caseload and cut loose those that suffer from a dearth of information. The RCMP may now be counting up its theoretical losses (the cases that it's dropping), but Canadian citizens are better protected against ad hoc bulk surveillance and law enforcement fishing expeditions.

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]]>if-at-first-you-don't-succeed,-quithttps://www.techdirt.com/comment_rss.php?sid=20141130/20421229281Fri, 7 Nov 2014 04:03:23 PSTThe Exception Is The Rule: How The Government's 'Good Faith' Efforts Are Destroying The Fourth AmendmentTim Cushinghttps://www.techdirt.com/articles/20141101/16293229019/exception-is-rule-how-governments-good-faith-efforts-are-destroying-fourth-amendment.shtml
https://www.techdirt.com/articles/20141101/16293229019/exception-is-rule-how-governments-good-faith-efforts-are-destroying-fourth-amendment.shtmlsome progress towards a restoration of the nation's Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance.

Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn't a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a "business record" -- something that is normally stripped of privacy expectations thanks to the Third Party Doctrine.

But here's where the decision ultimately falls apart. The Appeals Court arrived at a different conclusion, but refused to overturn the lower court's decision because it felt the lower court had "acted in good faith." Warrant requirements are now in place in the circuit court's jurisdiction, but the plaintiff was ultimately unable to have the illegally-gathered evidence thrown out.

Similarly, the Third Circuit Court of Appeals found last year that warrantless GPS tracking was a violation of the Fourth Amendment. Again, this decision tiptoed around other similar cases and reached a rather narrow conclusion. This was immediately appealed by the government, which asked for an en banc hearing. The en banc hearing returned this decision October 1st:

The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.

The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking.

Once again, the court found that the search was in violation of the Fourth Amendment, but "good faith" nullified the remedy of excluding the illegally-obtained evidence. The court also vacated the earlier ruling that instituted a warrant requirement for GPS tracking.

Under the “exclusionary rule,” when police engage in an illegal search, prosecutors can’t use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be “of no value” and “might as well be stricken from the Constitution.”

But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn’t be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.

Basically, the Supreme Court's new view is that the exclusionary rule is no longer a remedy, but a deterrent. The rule isn't there to ensure redress for those whose rights have been violated. It's there to steer law enforcement away from actions that would violate citizens' rights. But this doesn't work, and the main reason it doesn't work is the "good faith exception."

The cumulative effect has been to turn the "good faith exception" into a blank check for Fourth Amendment violations. The exception gives all but the most egregious violations a pass, a fact recognized by the dissenting opinion in the Third Circuit hearing.

"[T]his approach … expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

Those with valid Fourth Amendment complaints will find the courts nearly useless when seeking redress. Combined with the immunity routinely granted to law enforcement in civil cases, those whose rights are violated are left to hope for long-delayed settlements post-incarceration, rather than avail themselves of their rights when on trial for criminal charges -- the point where the exclusionary rule would be of most use.

The good faith exception has swallowed the exclusionary rule and these compounding decisions allow law enforcement to predicate their defenses on uncertainty (even though the accused are never extended the courtesy of an "ignorance of the law" defense) and hide behind immunity while courts continue to defer to the judgement of John Q. Officer.

[T]he name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?

The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice. Even the language deployed plays into law enforcement's hands.

The complications arising from technological advances have muddied the waters a bit, at least in terms of where Fourth Amendment protections begin and end. To prosecutors, these protections haven't changed at all. They're still almost nonexistent. Technology presents new challenges to law enforcement and these are greeted almost exclusively with pleas for further exceptions, as though they should also be immunized from keeping pace with the world itself. And, for the most part, they've been obliged by the judicial system.

When the exception swallows the rule, the Fourth Amendment becomes nothing more than a bit of aspirational fluff cranked out by hotheaded revolutionaries nearly 250 years ago. At best, it's a hassle. At worst, it's clearly unsuited to handle the nuances of today's technology. That's the prevailing government viewpoint. Our rights are eroding, and the most corrosive force has been those sworn to uphold the nation's laws and protect its citizens' liberties.

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]]>synergy!https://www.techdirt.com/comment_rss.php?sid=20141101/16293229019Mon, 3 Nov 2014 08:53:00 PSTCourt Tells US Gov't That 'State Secrets' Isn't A Magic Wand They Can Wave To Make Embarrassing Cases Go AwayMike Masnickhttps://www.techdirt.com/articles/20141031/15383329006/court-tells-us-govt-that-state-secrets-isnt-magic-wand-they-can-wave-to-make-embarrassing-cases-go-away.shtml
https://www.techdirt.com/articles/20141031/15383329006/court-tells-us-govt-that-state-secrets-isnt-magic-wand-they-can-wave-to-make-embarrassing-cases-go-away.shtmlGulet Mohamed, a US citizen who was put on the no fly list and ran into some issues in the Middle East because of that (and by "issues" we mean he was beaten by Kuwaiti officials for wanting to fly home to Virginia). The DOJ was making some nutty arguments, including claiming that the whole case should be thrown out because "state secrets." This is the usual claim in these kinds of cases. Back in August we noted that the judge, Anthony Trenga, was skeptical of this argument, asking for the DOJ to provide a lot more info to back up its claims (in that post we also noted that the DOJ wanted to pretend that the leaked guidelines for how the no fly list works hadn't been leaked).

Now the judge has ruled officially and rejected the DOJ's argument, saying that they can't just claim "state secrets" and walk away. In the ruling, Judge Trenga makes it clear that while there may be some sensitive information in some documents, the case can move forward without that information being revealed:

Certain of the submitted documents appear to contain confidential, security sensitive
information that may fall appropriately within a law enforcement privilege. However, the
information presented to date by the defendants in support of the state secrets privilege as to
these documents is insufficient to allow the Court to conclude that "there is a reasonable danger"
that disclosure of these documents to at least the plaintiffs counsel, under the protections of an
adequate protective order, would disclose information that would "expose military matters
which, in the interest of national security, should not be divulged."

More importantly, Judge Trenga notes that the DOJ has to get over this idea that the "state secrets" privilege is some kind of "sovereign immunity" claim that the DOJ can just wave around and have entire cases dismissed:

... the state secrets privilege is a
judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability,
whose applicability and consequences, where applicable, are best considered within a specific
context during the actual adjudication of any claims to which it may apply.

That's a bit of a complex sentence, but it's basically saying that state secrets may apply to specific bits of evidence, but shouldn't be used to just toss out an entire case. Kudos for Judge Trenga for not just rolling over when the DOJ said "state secrets." It would be nice if more judges did the same.

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]]>good-newshttps://www.techdirt.com/comment_rss.php?sid=20141031/15383329006Wed, 8 Oct 2014 14:18:54 PDTSWAT Team Raids House And Kills Homeowner Because Criminal Who Burglarized The House Told Them ToTim Cushinghttps://www.techdirt.com/articles/20141004/15443628731/swat-team-raids-house-kills-homeowner-because-criminal-who-burglarized-house-told-them-to.shtml
https://www.techdirt.com/articles/20141004/15443628731/swat-team-raids-house-kills-homeowner-because-criminal-who-burglarized-house-told-them-to.shtml
We've heard complaints that warrant requirements for searches are an obstacle to efficient crime fighting. Here's a timeline of an incident that led to the death of a homeowner during a SWAT team raid in search of drugs it never found. (via PoliceMisconduct.net)

Late Sept. 22nd/early A.M. Sept. 23rd: David and Teresa Hooks' home was burglarized. Among the items stolen was their SUV.

Sept. 24th, 3:45 pm: 24 hours later, Garrett is in police custody, turning himself in after becoming "fearful for his life" when he realized a bag he stole from the Hooks' home contained crystal meth. He confessed to the burglary, vehicle theft and "other crimes." (It must be noted that this version of events comes from the warrant application. Hooks' attorney's statement merely says Garrett was "taken into custody.")

Sept. 24th, 9:56 pm: Six hours, later the Laurens County "drug task force" has its warrant application for a search of Hooks' house signed by Judge Snell, based almost solely on the statements made by an admitted felon in their custody.

From a statement by the Hooks' attorney, Mitch Shook:

The facts submitted to Deputy Magistrate Snell to convince her that probable cause existed to issue the warrant consisted of the statement by Rodney Garrett a confessed burglar, thief, and a meth addict who was under the influence at the time of his arrest that the approximately 20 grams of methamphetamine, a digital scale, and 2 firearms found on him at the time of arrest had been stolen by him out of another vehicle at the Hooks home.

The warrant application also lists an investigation from 2009 as more "probable cause."

In the warrant application, Laurens investigator Chris Brewer wrote that he knew Hooks and his home address from a previous investigation. Brewer said a suspect claimed he had been supplying "multiple ounces" of methamphetamine to Hooks, who re-sold it.

Shook says that investigation was done in 2009. Neither Shook or the Sheriff's department stated the outcome of that investigation.

The timeline continues. One hour later -- at 10:55 PM -- Hooks' home is raided and David Hooks is shot dead.

Here's the police version:

The Laurens County Sheriff's office says Hooks was shot after he got out a firearm and started showing aggression.

Here's his wife's version:

He says Teresa Hooks, David's wife, looked outside and saw people with hoods during the evening of the drug search. He says she woke her husband up, thinking the burglars were back. He says Hooks then armed himself.

Which seems plausible. Less than 48 hours had passed and Hooks would have had no idea he was on the receiving end of a drug task force "investigation." The word "investigation" receives the scariest of scare quotes, considering it mostly consisted of a multiple felon trying to explain away the gun, scale and meth in his possession. If the suspect had claimed he didn't rob Hooks' house, the police wouldn't have believed him. But when this same suspect starts blabbering about finding meth during his robbery, the cops are all ears, as though he were Abraham Lincoln himself, swearing on a stack of Bibles.

How do we know all of this is bullshit? Because the police spent almost as much time searching Hooks' house -- nearly two days -- as it did between the point Hooks' house was invaded the first time (by confessed burglar Rodney Garrett) and the second time (by the SWAT team).

[A]fter taking over the scene at around 11:55 p.m. on the 24th of September the GBI conducted a thorough search of the property that lasted until approximately 8:00 p.m. Friday, September 26th. That search of some 44 hours conducted by numerous agents with the GBI resulted in not one item of contraband being found! This has been confirmed to the family by the GBI and is evidenced by the return of the original search warrant which was finally filed in court on September 29th and indicates that nothing was seized pursuant to the search warrant.

In between these two periods of 40+ hours was a flashpoint: the raid itself. The task force shot Hooks dead in his own home, pursuing the self-serving pipe dreams of a meth addict. The SWAT team broke down the back door and fired "no less than 16 shots" at David Hooks, some blindly through an adjacent wall. Hooks had every right to pick up his weapon and investigate this second home invasion. But in doing so, he gave every raiding officer all the justification needed to shoot first -- and shoot often.

He's too dead to be charged with forcing law enforcement weapons to discharge (because they fire themselves so often in official police statements), and he died as the result of a speedy judge-jury-executioner process that hinged on the arbitrary credulity of the Sheriff's Department and its drug task force. To call this willing suspension of disbelief an "investigation" is to strip the word of all meaning. (And beat it. And send it naked and bruised into the harsh winter, etc.) A late-night raid has all sort of deadly implications that could have been avoided by an actual investigation. Now, the department has blood on its hands and a lawyer on its trail -- all because a burglar told some law enforcement officers whatever came to mind during his interrogation.

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]]>get-cops-to-do-your-bidding-using-this-one-simple-trick!https://www.techdirt.com/comment_rss.php?sid=20141004/15443628731Mon, 29 Sep 2014 05:38:59 PDTRoca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca In PissedConsumer CaseMike Masnickhttps://www.techdirt.com/articles/20140928/06060328657/roca-labs-threatens-to-sue-all-three-former-customers-who-provided-evidence-against-roca-pissedconsumer-case.shtml
https://www.techdirt.com/articles/20140928/06060328657/roca-labs-threatens-to-sue-all-three-former-customers-who-provided-evidence-against-roca-pissedconsumer-case.shtmlRoca Labs story keeps getting more and more ridiculous. Each time you think the company couldn't act in a way that seems even more sleazy and questionable, it raises the bar. If you don't recall, Roca Labs sells a "dietary supplement" (they describe it as a "food additive" or a "nutraceutical") that, according to one doctor, "consists primarily of industrial food thickening agents" which the company claims is an "alternative" to gastric bypass surgery. More importantly, the company has some crazy terms of service that say if you buy the product the company will offer a "discount" in exchange for agreeing to never say anything negative about the product ever in any form (and requiring you to allow the company to showcase any positive results). One of our readers went through the ordering process and claims that the "discount" is a mirage -- as there appeared to be no way to order without the "discount" (i.e., without agreeing to the gag clause). Despite all this, there are numerous complaints about Roca Labs and its product both with the Better Business Bureau (which gives the company an F grade) and with PissedConsumer, where people have complained about both the company and the product.

In response, Roca Labs used some unique legal theories to sue PissedConsumer's parent company, Consumer Opinion Corp., claiming that it's "tortious interference" to solicit consumer reviews, given the company's gag order. PissedConsumer fought back, arguing that the gag clause was clearly unenforceable, questioning the quality of Roca's products, and highlighting the company's history of threatening lawsuits when people complained to the Better Business Bureau. On top of all that, we noted that Roca Labs decided, in the midst of all this, to sue a former customer for complaining to the Better Business Bureau. This lawsuit was filed the day after PissedConsumer responded to Roca's lawsuit, the timing of which will become more interesting as you read a little further.

If you're keeping score at home, among the questionable actions by Roca Labs (leaving aside any questions about the efficacy and safety of the product), we've got (1) a gag order that both demands silence if you're unhappy and compels endorsement if you are happy, (2) a questionable legal threat against a website that collects consumer reviews, and (3) legal threats and lawsuits against unhappy customers for merely complaining to the BBB about Roca Labs.

And now the company has taken it up to another level. As we noted, when PissedConsumer fought back, it included declarations from three former customers, all of whom had complained to the BBB. It had been a while since any of those former customers had heard from Roca Labs, but four days after PissedConsumer's response, all three of those customers received new letters from Roca Labs, threatening legal action for "breach of contract."

Via the attachments in the filing, you can see that Randazza had a ridiculous email conversation with Roca Labs' lawyer, Paul Berger, in which Randazza bent over backwards offering to allow the company to file such lawsuits if needed to avoid a statute of limitations, but otherwise asked the company to defer any such threats or legal action until after the court expresses an opinion on the legitimacy of Roca's gag order (which is expected next week). Berger appears unwilling to respond directly to what Randazza is clearly offering, and also makes some bizarre claims about not being able to respond as the legal representative of Roca Labs, despite his own email signature noting that he's the "independent general counsel" for the company and the fact that all the threat letters came directly from him (his reason: not being admitted to the bar in that part of Florida -- a meaningless excuse for the purpose of communications between lawyers, since that only concerns his ability to appear in court).

In the threat letters to the three customers sent on Monday morning, September 22nd, Berger directly references that one lawsuit he filed the previous Friday, September 19th, as evidence of the "seriousness" with which Roca takes these issues. So, the timeline: on Thursday, September 18th, PissedConsumer responds to Roca's lawsuit, including declarations from three former customers who complained to the Better Business Bureau, only to receive initial threats from Roca soon after, though no actual lawsuit (two of these happened in 2011, one earlier in 2014). On Friday, Roca sues a different former customer who complained to the Better Business Bureau. Then, early Monday morning, Roca sends letters to the three former customers whose declarations were part of the Thursday filing, pointing to the Friday lawsuit as evidence of how the company will sue customers who complain to the BBB. You can see all three threats embedded below.

As Randazza notes in his own filing, this appears to be a fairly clear attempt to "intimidate and harass defense witnesses." From the filing:

So far, three of Roca’s prior customers have agreed to serve as witnesses. Most others
declined to respond, wishing to not get involved, out of fear that Roca would retaliate against
them for testifying. Those concerns proved to be well-founded, as Roca threatened all three of
the witnesses Opinion Corp. identified. The timing of its aggression against these three
women makes its intentions transparent – Roca wants to intimidate them and any other potential
witnesses in this case.

As for Ms. Walsh and Ms. Anderson, it has been in excess of three years since they
lodged their complaints with the Better Business Bureau. Roca threatened litigation at the
outset, demanding they retract their complaints. Roca then went completely silent for more
than three years. However, after such a long period of dormancy Roca now seeks to threaten
imminent legal action against these witnesses. Nothing could have motivated Roca to reach out
to these women after such a long period other than to try and intimidate witnesses in this case.

The filing only seeks a rather brief temporary restraining order, asking the court to block Roca from any such threats or lawsuits until after the October 8th hearing in this case, when it's likely the judge will determine if the original gag order from Roca Labs is legit. As Randazza notes, the only possible "harm" to Roca is delaying a possible lawsuit by less than two weeks (which seems completely minor given that Roca Labs ignored the issue with at least two of the customers in question for over three years). Furthermore, Randazza asks for any and all communications with those and other potential witnesses in the case to make sure that there hasn't been anything else that might be deemed witness harassment or intimidation.

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]]>the ultimate in sleazy https://www.techdirt.com/comment_rss.php?sid=20140928/06060328657Thu, 25 Sep 2014 12:24:39 PDTMurder Case Prosecutors Claim 'National Security' To Stop Questions About FBI Examination Of Google Maps SearchTim Cushinghttps://www.techdirt.com/articles/20140924/11044928623/murder-case-prosecutors-claim-national-security-to-stop-questions-about-fbi-examination-google-maps-search.shtml
https://www.techdirt.com/articles/20140924/11044928623/murder-case-prosecutors-claim-national-security-to-stop-questions-about-fbi-examination-google-maps-search.shtml
A Google Map search is seemingly the only piece of evidence tying former Cisco engineer Brad Cooper to the the murder of his wife, Nancy. According to his testimony, Cooper was at home with the couple's two daughters at the time his wife was strangled in a nearby park.

Nancy Cooper disappeared on July 12, 2008. That same day, Brad Cooper was questioned by local law enforcement. During the next couple of days, he consented to a search of his house and vehicle and turned over a pair of his wife's running shoes for dogs to track her scent. On July 14th, a body was discovered. This was confirmed to be Nancy Cooper the next day. Brad Cooper turned over the house to investigators that same day, moving out to "preserve" the house itself as evidence. He left behind his computer, which was still connected to the internet. This stayed on for 27 hours before investigators removed it.

Here's where it gets interesting. (An admittedly callous way to look at a situation where one person is dead, one is headed to jail and two kids are effectively parentless…)

The most damning evidence gathered by investigators (working with the FBI) was a Google search showing the exact spot where Nancy Cooper's body was discovered, supposedly performed by Brad Cooper the day before she was killed. This being the only evidence is a fact, rather than conjecture. It's acknowledged in the appeals court's decision which granted Cooper a new trial. [pdf link]

Prosecutors pressed hard with this discovery, coupling it with the fact that Cooper and his wife were observed arguing at a party the night before she vanished. The real story about this supposed search may never come out. Cooper pled guilty to reduced charges earlier this week, after being granted a new trial on appeal. Perhaps Cooper actually did murder his wife, but the key evidence being used against him was severely questionable, enough so that he was awarded another chance to fight the charge.

The 56-page opinion granting him a new trial details the previous court's unconstitutional "abuses," which led to a guilty verdict.

Cooper's defense attacked the supposedly damning search, alleging that it had been planted on the computer by investigators. Their first witness could likely have offered testimony indicating the search had been planted but the State called into question his expertise as a forensic expert and his testimony was prohibited by the court from covering this topic.

Cooper's defense tried to bring in another witness, one more specifically-trained to testify on the specifics the court was demanding. This last-minute replacement, who had reached the same conclusion as the previous expert (that the search had "been placed on the hard drive [and] could not have been the result of normal internet activity"), but was prevented from doing so when the State objected to this "violation" of discovery rules (i.e., witness and testimony were not presented to the prosecution before the trial began).

The appeals court disagreed with the previous court's dismissal of the first expert witness. It argued that this witness was specifically trained to discover computer tampering, something a planted search result would fall under.

The Google Map files recovered from Defendant's laptop were perhaps the most important pieces of evidence admitted in this trial. We hold that the trial court abused its discretion in excluding Ward from testifying, relying on the State's own evidence, to his opinion that the Google Map files recovered from Defendant's laptop had been tampered with.

[...]

We hold, whether the error was constitutional or not, that erroneously preventing Defendant from presenting expert testimony, challenging arguably the strongest piece of the State's evidence, constituted reversible error and requires a new trial…

The appeals court also found that excluding the second witness because of discovery violations was also unconstitutional, noting that using procedural issues to deny the defendant a chance to defend against the single, most important piece of evidence is a deprivation of due process.

In light of the lack of willful misconduct on the part of Defendant, the rational reason presented for failing to inform the State before trial that Defendant would be calling [the new witness], the role of the State in having this situation arise after the trial had commenced, the fundamental nature of the rights involved, the importance to the defense of the testimony excluded, and the minimal prejudice to the State had the trial court imposed a lesser sanction – such as continuance or recess, we hold that imposing the harsh sanction of excluding Masucci from testifying constituted an abuse of discretion.

The third key issue leading to Cooper being awarded the new trial is the most interesting -- a motion made to limit discovery with assistance from the FBI. Cooper's team tried to get the State to turn over information related to the means and methods used during its forensic search of Cooper's computer and found itself being denied on "national security" grounds.

The State filed a motion in opposition, arguing that there exists "a law enforcement sensitive qualified evidentiary privilege" which should act to prevent discovery of these items, "because such disclosure could lead to the development of countermeasures to FBI investigative techniques. Such countermeasures could defeat law enforcement's ability to obtain forensic data in criminal cases." The State also argues that this information was protected as "work product."

The trial court agreed.

The trial court found as fact "[t]hat the FBI's Standard Operating Procedures and policies are the same techniques and tools that are used in counterterrorism and counterintelligence investigations[.]" The trial court concluded that "under the provisions of N.C. Gen. Stat. §15A-903, patterned after Federal Rule of Criminal Procedure 16, the disclosure of the information sought by... Defendant would be contrary to the public interest in the effective functioning of law enforcement[,]" and that "under the provisions of N.C. Gen. Stat. § 15A-908[,]" disclosure of the information would result in "substantial risk" of harm to "any person, including the citizens of this State, of physical harm."

As the appeals court pointed out, there was no reason to completely deny discovery. The documentation could have been reviewed in camera for any potential national security issues, or allowed certain redactions to be made. It also pointed out that even the FBI's stated national security concerns don't necessarily preclude discovery.

Even in the face of a compelling State interest in keeping records confidential, due process might compel discovery, depending on how material the records are to a defendant's defense.

In this case -- with the "sole piece of evidence" being a questionable Google Maps search -- discovery was extremely material and possibly exculpatory. But the trial court wouldn't even allow the defense to ask whether revealing the forensic method used to "recreate" the map search would have national security implications.

MR. KURTZ: Well, Judge, there is potentially a piece of information that exists on Mr. Cooper's computer that could say definitely that this material was planted, absolutely definitive. I may be wrong. Special Agent Johnson's testing may indeed be that it all has the exact same millisecond all the way across. I don't think I'm wrong. Now, one way or the other, whether it's having a -- a test done on a Vista machine now and seeing what it -- what it actually shows or giving us access to the original test data, which I don't believe has any national security ramifications since it deals with a Google Map test. One way or the other, we should be entitled to this information as it could be tremendously exculpatory.

THE COURT: Upon reconsidering this issue about this in-court test, pursuant to Rule 53-403, I'm going to sustain the objection and exclude any testing in Court because of the differences in the equipment and the statements made by this witness that this is not the appropriate place to do it. We need to bring the jury back in. And regarding the national security issue, that is a matter that we have already ruled on. It is something I have already dealt with.

MR. KURTZ: But, Your Honor, there is a witness on the stand that can answer specifically whether this is an issue of national security. And I'm not even going to be allowed to ask that question?

THE COURT: I believe I've already determined, because of the rules of the -- and the discovery process that you are not entitled to get those things.

MR. KURTZ: So my understanding is, the -- the rules and the discovery process, we're hiding behind national security on an issue where we could get a clear answer from a witness that this is not in fact a national security issue. And we're talking about a piece of information that could be exculpatory to Mr. Cooper.

Further on, Cooper's defense presses the issue further, veering into exasperated sarcasm, only to be shut down again.

THE COURT: It's the methodology that they used, I think, that falls under the security issue, but –

MR. KURTZ: But if I could ask Special Agent Johnson if he has any national security concerns related to that methodology, we might be able to determine that this one particular test is a legitimate one to be disclosed, that it will not actually disclose the missile codes.

[...]

THE COURT: The objection is sustained. I'm not going to allow further questioning in this line or any in-court testing of that computer.

This shut-down of discovery was the third factor prompting the decision to grant Cooper a new trial. Not that it matters. As stated earlier, Cooper has opted to plead guilty, perhaps because the lighter sentence could see him freed in another six years or so, as well as possibly give him the chance to be visited by his family members. It may also be that his new trial was being handled by a public defender who wasn't familiar with the details, rather than his previous legal team. There are a lot of factors to weigh, and even innocent people have been known to cop a plea rather than keep on fighting. It's been more than six years since Brad Cooper was arrested. He may spend less time in jail than he has fighting these charges.

None of the above is meant to imply that Cooper is definitely innocent, but the key piece of evidence is very questionable. Even without the FBI's "national security" intercession, the State has been very reluctant to turn over any information about its examination of Cooper's computer. An anonymous blogger who has been tracking this case notes that those who examined the computer made two different statements about the presence of a "cookie" verifying the Google Maps search.

Cooper's computer contained cookies for every day except the day the search was to alleged to have occurred. The forensic examination of the computer turned up no evidence of the cookie being deleted, as testified by the FBI's Agent Johnson. It simply wasn't there. The FBI could have subpoenaed Google for the information regarding this search but never did, even though it requested other information from the search giant.

Agent Chappell, on the other hand, offered up two different stories in court documents. In the report stating that the FBI had found no evidence that Cooper's computer had been tampered with, he says that "we have an index.history.dat file the week of 7/11 that corroborates the visit to maps.google.com and a cookie for the visit."

But in his testimony, he states the opposite. Chappell was unable to find the cookie corroborating the visit in "allocated or recovered deleted." In fact, Chappell could find "nothing from this side."

In May ’09 …. 10 months after the crime, Howard Kurtz, Brad’s defense attorney contacted Agent Johnson and asked him if he could obtain a copy of the hard drive and Johnson informed him that he was finished and that he could pick up a copy that day. Hours later, Detective Daniels contacted Brad’s attorneys and informed them that ADA Howard Cummings would not release the hard drive to them. No reason was given, no timing was given. They wouldn’t receive it until after the privacy policy had expired, making it too late to ever verify the search through Google cookies. Because they received the Defense “preservation of evidence” letter, the prosecution knew that they would miss this privacy deadline.

But in the middle of it all is the FBI. While the FBI may not have tampered with Cooper's computer, the simple fact is that any law enforcement agency can ask for the FBI's help in matters like this and use the feds' "national security" shield to withhold certain information from the defense. The appeals court chastised the trial court for indulging the FBI's secrecy, but many, many courts will swiftly defer, even if it means the withholding of possibly exculpatory evidence. That's the very troubling side effect of the FBI's dalliance in national security, something it has focused more and more of its efforts on over the past several years. It can assist law enforcement, like it always has, and use its "higher calling" to shroud itself and those it helps in secrecy.

The New Jersey Supreme Court today issued a decision holding that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. The Court recognized rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful, which could improperly prejudice a jury who reads them.

In the case under discussion, the prosecution submitted rap lyrics written by Vonte Skinner not as evidence he committed the crime with which he was charged, but just as a general indicator of his motive and intent. By doing so, the state was able to convince a jury to return a guilty verdict on multiple charges.

Defendant was charged with first-degree attempted murder and related charges, and, before trial, he requested a preliminary hearing to contest the admissibility of his rap lyrics. The court concluded that the lyrics were relevant because they tended to prove the State’s theory of the case and found them admissible under N.J.R.E. 404(b) because they provided insight into defendant’s alleged motive and intent. Accordingly, the court ordered that redacted portions of defendant’s lyrics would be admitted into evidence. Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict.

Prior to his retrial, defendant renewed his objection to the admissibility of the rap lyrics, and the court again found them admissible. At defendant’s second trial, a detective testifying for the State read to the jury extensive passages from defendant’s lyrics, depicting violence, bloodshed, death, and dismemberment unconnected to the specific facts of the attempted-murder charge against defendant... The jury convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and the trial court imposed an aggregate thirty-year sentence with an eighty-five percent parole disqualifier.

The appeals court reversed this decision, finding that the admission of Skinner's rap lyrics as evidence had a "prejudicial impact [that] vastly outweighed any probative value." The state appealed this decision, bringing it to the state Supreme Court.

The Supreme Court upheld the appeals court's findings, noting that the history of artistic expression is littered with violent narratives unconnected to actual criminal activity.

In assessing the probative value of defendant’s fictional lyrics, the Court notes that probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced. The Court explains that the difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The Court reasons that defendant’s lyrics should receive no different treatment. This approach is in accord with other jurisdictions that have considered similar questions. The Court concludes that the violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant.

That last sentence distills the motivation behind the growing popularity of this prosecution tactic. A jury of supposed peers is going to contain any number of people who find rap music and its subject matter offensive and an "indicator" of a person's criminal intent, whether or not such intent exists. If the court had gone the other way, there is no doubt that rap lyrics would be submitted en masse for easy wins. Fortunately, this decision directs prosecutors to more strenuously weigh their evidence before submission.

In sum, rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s probative value is not outweighed by its apparent prejudice. In the weighing process, courts should consider the existence of other evidence that can be used to make the same point. When admissible, such evidence should be carefully redacted to ensure that irrelevant, inflammatory content is not needlessly presented to the jury.

Because rap lyrics tend to deal with the holy trinity of guns, drugs and money, prosecutors will still feel strongly tempted to introduce these written words as background color, if nothing else. The court's directions, while aimed at prosecutors, will likely have a greater effect on lower courts' standards for evidence admission. A state Supreme Court decision that doesn't specifically forbid the introduction of rap lyrics as evidence will just be probed for weaknesses by enterprising prosecutors, the same group that often finds someone's expressed thoughts to be inseparable from their deeds.

The case also has limited bearing on a similar set of circumstances currently being examined by the US Supreme Court, where a man with a history of making outrageous comments on social media sites -- like expressing his desire to kill his estranged ex-wife or shoot up a school -- is now finding his words being used against him as evidence of criminal intent. This person has also referred to some of his postings as "rap lyrics" and has noted that much of what has been submitted as evidence has been taken out of context -- that context being the accused's long history of running his mouth carelessly on a variety of social media platforms.

Unlike Skinner, no physical crime has been committed. Instead, these postings have been treated as threats by prosecutors, which brings a different perspective to the proceedings. In this case, intent is the whole of the crime, rather than just one aspect of it and, as such, should be very carefully weighed unless the US Supreme Court wants to make criminals out of the Bob Marleys and Edgar Allan Poes scattered across the web.

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]]>no-more-punishment-of-thoughtcrimehttps://www.techdirt.com/comment_rss.php?sid=20140805/05371828112Thu, 10 Jul 2014 12:05:00 PDTFiles About UK's Role In CIA Renditions 'Accidentally' DestroyedMike Masnickhttps://www.techdirt.com/articles/20140710/06562927838/files-about-uks-role-cia-renditions-accidentally-destroyed.shtml
https://www.techdirt.com/articles/20140710/06562927838/files-about-uks-role-cia-renditions-accidentally-destroyed.shtmlfiles on the UK's role in CIA rendition efforts have been "accidentally destroyed." I'm wondering if anyone can read that claim without rolling their eyes.

When Tyrie asked the Foreign Office (FCO) to explain which government department keeps a list of flights which passed through Diego Garcia from January 2002 to January 2009, FCO minister Mark Simmonds replied: "Records on flight departures and arrivals on Diego Garcia are held by the British Indian Ocean Territory immigration authorities. Daily occurrence logs, which record the flights landing and taking off, cover the period since 2003. Though there are some limited records from 2002, I understand they are incomplete due to water damage."

The Foreign Office would not say whether the damaged files were UK or US records, or say where they were located. An FO spokesperson maintained that because the damage "was only recently discovered" it did not know how or when it occurred.

Convenient story. As the report notes, this follows earlier vehement denials from the UK government that Diego Garcia was used for rendition... only to later have to admit that they were lying.

Ministers of successive governments have repeatedly given misleading or incomplete information about the CIA's use of Diego Garcia. In February 2008, the then foreign secretary, David Miliband, was forced to apologise to MPs and explain that Tony Blair's "earlier explicit assurances that Diego Garcia had not been used for rendition flights" had not been correct. Miliband said at this point that two rendition flights had landed, but that the detainees on board had not disembarked.

Once again, it appears that the intelligence community is more focused on covering its tracks than on making sure it's not violating everyone's rights.

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]]>yeah,-righthttps://www.techdirt.com/comment_rss.php?sid=20140710/06562927838Wed, 18 Jun 2014 15:12:17 PDTIRS Now Says It Has Lost Emails From Six More Accounts Tied To The Investigation Of Its Targeting Of Tax-Exempt GroupsTim Cushinghttps://www.techdirt.com/articles/20140618/12272827618/irs-now-says-it-has-lost-emails-six-more-accounts-tied-to-investigation-its-targeting-tax-exempt-groups.shtml
https://www.techdirt.com/articles/20140618/12272827618/irs-now-says-it-has-lost-emails-six-more-accounts-tied-to-investigation-its-targeting-tax-exempt-groups.shtml
The IRS recently blamed a "computer crash" for the disappearance of two years of email correspondence involving Lois Lerner, the IRS official at the center of the controversy surrounding the agency's apparent targeting of certain non-profit groups (Tea Party, Occupy, open source).

Apparently, this computer crash also destroyed any backups of the email between Lerner's office and outside government agencies, along with the hard copy backups IRS employees are required to maintain as part of its public records obligations. The latter part of that hasn't been specifically denied, but it's assumed no one's rounding up email printouts at the moment. As is the new Standard Operating Procedure for Grandstanding, a Congressman has demanded the NSA hand over the metadata on the missing Lerner emails.

The Internal Revenue Service says it can't produce e-mails from six more employees involved in the targeting of conservative groups, according to two Republicans investigating the scandal.

The IRS recently informed Ways and Means chairman Dave Camp and subcommittee chairman Charles Boustany that computer crashes resulted in additional lost e-mails, including from Nikole Flax, the chief of staff to former IRS commissioner Steven Miller, who was fired in the wake of the targeting scandal.

The question is still: conspiracy or colossal screwup?

Certainly the fact that emails and accounts directly related to the investigation are missing data from the crucial 2009-2011 period does make it look like the agency's hiding something. But the possibility that this is can be chalked up to regular government ineptitude is never too far away.

For disaster recovery purposes, the IRS does a daily back-up of its email servers. … Prior to May 2013, these backups were retained on tape for six months, and then for cost efficiency, the back-up tapes were released for re-use. In May of last year, the IRS changed its policy and began storing rather than recycling its backup tapes.

This means that older backups no longer exist, at least anything "taped over" prior to the change of policy. One wonders why the agency was allowed to recycle backups when much of what's being backed up is subject to public records laws. But to make the situation even worse, the IRS greatly restricted the number of emails each employee could retain.

Currently, the average individual employee's email box limit is 500 megabytes, which translates to approximately 6,000 emails. … Prior to July 2011, the limit was lower, 150 megabytes or roughly 1,800 emails.

As Hinderaker points out, someone in Lerner's position could run through that allotment in just a few days, meaning she would most likely begin archiving them to her own computer, something that could actually destroy emails when it crashed.

But this doesn't excuse the missing email, although it does help explain it. As the IRS's own policies note, archiving email to local storage is not an adequate solution and does not comply with public records regulations. So, Lerner and the six others affected should have had hard copy printouts of every email that could possibly be considered a relevant public record. Apparently, they don't and it's highly unlikely that many IRS officials take this Luddic requirement seriously.

Even with this additional information, the coverup theory isn't completely dispelled. One computer crash nuking vital emails is unfortunate. Six computers all taking out relevant email from a specific time period goes far past coincidental. The fact that the IRS hid this from the investigatory committee for months before finally "revealing" it on page 15 of a 27-page letter lends more credence to those who feel there's been a concerted effort to keep information buried. It also should be noted that the IRS itself has not stepped up and explained how something like this could happen (other than saying "computer crash"). Anything pertaining to the IRS's regrettable backup "solutions" and absurdly tiny email storage has been uncovered by the research of others. So, until the agency has anything further to add, the scale remains perfectly balanced between "malice" and "stupidity."

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]]>evil-or-just-stupid?https://www.techdirt.com/comment_rss.php?sid=20140618/12272827618Tue, 17 Jun 2014 09:03:00 PDTCourt Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect's LawyersMike Masnickhttps://www.techdirt.com/articles/20140616/18141727598/court-rejects-request-that-secret-nsa-evidence-used-against-terrorism-suspect-be-shared-with-suspects-lawyers.shtml
https://www.techdirt.com/articles/20140616/18141727598/court-rejects-request-that-secret-nsa-evidence-used-against-terrorism-suspect-be-shared-with-suspects-lawyers.shtmlAdel Daoud, an American citizen charged with terrorism. He's one of the many, many folks that was arrested following one of the FBI's infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his "co-conspirators" were actually FBI agents or informants, and there was never any actual threat or chance that he'd pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud's case as a specific example of when the program had been useful in stopping terrorism.

That caught the attention of Daoud's lawyers, who noted that this was the first they'd heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud's attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they're trying to lock up forever should actually be able to see the evidence used against him and how it was collected.

This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.

The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact.
That is an incomplete description of the American judicial
system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal
courts as well as hearings that are neither or both. And there
are federal judicial proceedings that though entirely public
are nonadversarial, either partly or entirely.

Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the "secret hearing" that was held was to go over the material with the appeals court judges, and they're satisfied that nothing needs to be revealed to Daoud's attorneys.

...our study of the materials convinces us that
the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a
public document) these conclusions, and why therefore a
remand to the district court is neither necessary nor appropriate.

Posner also, not surprisingly, rejects the objection by Daoud's lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:

Their objecting to the classified hearing was ironic. The
purpose of the hearing was to explore, by questioning the
government’s lawyer on the basis of the classified materials,
the need for defense access to those materials (which the
judges and their cleared staffs had read). In effect this was
cross-examination of the government, and could only help
the defendant.

Defense counsel’s written motion cites no authority for
forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are
to be discussed. We don’t think there’s any authority it could
cite.

And, voila, the secret law and secret courts and secret evidence continue unabated...

For a very good analysis of this ruling, I recommend Steve Vladeck's take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud's lawyers in secret, with "openness" to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.

The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

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]]>secret-courtshttps://www.techdirt.com/comment_rss.php?sid=20140616/18141727598Tue, 17 Jun 2014 03:41:00 PDTUSTR's Special 301 List Of 'Naughty' Countries Without Strong Enough Patent And Copyright Laws Is A Complete JokeMike Masnickhttps://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml
https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtmlSpecial 301 report is. It's supposedly a "listing" of "naughty" countries who don't protect intellectual property enough for the US's tastes. However, as we've noted, there is no methodology behind it: a bunch of industry lobbyists submit lists of what countries they don't like to the USTR, the USTR talks to various diplomats, basically rewrites the list to "shame" certain countries, and releases the list. Canada, which has been put on the list for years despite having stricter copyright laws than the US, has officially stated that it simply does not accept the Special 301 findings as legitimate. Chile did the same thing a year ago. As I've mentioned before, at a conference a few years ago, I even saw the then head of the US Copyright Office mock the Special 301 report as a widely recognized joke.

Unfortunately, however, for countries who are heavily reliant on good relations with the United States, being on "the naughty" list is often an effective way to force them to jump through hoops to make Big Pharma or Hollywood happy. As we've discussed, Spain has been pressured into changing its copyright laws via the 301 list multiple times.

George Washington PhD student Gabriel Michael has decided to dig deep into the Special 301 Report and its history to determine if there's any point to it at all, and his initial results suggest that the process is even more of a joke than initially suspected. He notes that there's no real "enforcement" mechanism (at least not one that the US seems willing to use). He also notes that the US is incredibly hypocritical about it. While the Special 301 report mostly complains that other countries don't have enough intellectual property protection, at other times it goes the other way, like when it's the kind of IP that the US government doesn't like (geographical indicators or GI).

...by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing “concerns” about the EU’s geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering too much IP—or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers.

In researching the effectiveness of the Special 301, Michael notes that supporters of the effort point to a study done in the International Trade Journal called "Special 301 and Royalty Receipts from U.S. Trade Partners" by David Riker, which argued that the Special 301 is effective, because there's a pretty big increase ($5.4 billion annually) in US royalty receipts from countries after being placed on the list. Michael sets out to replicate Riker's results and discovers very, very different results, in part because Riker made some notable errors (claiming Hong Kong was on the priority list, when it wasn't). Riker also only looked at some of the countries in the Special 301 Report. Michael looked at what happened when you viewed all of them, and he also had two more years of data to research. In the end, Michael finds that Riker's conclusions are simply not supported by the data.

To summarize, while I was able to replicate Riker’s results, simply including additional years of data causes his findings of significance to disappear. Likewise, even in his original dataset and models, if Watch List designations are included, the findings of significance disappear.

Ultimately, these results lead me to conclude that Riker’s 2012 article is both theoretically and empirically flawed. It cannot support the conclusion that Special 301 designations are correlated with increased IP royalties from designated countries in subsequent years.

In another post, Michael points out the obvious: the Special 301 list is never actually about intellectual property protections, but about political considerations. He notes that countries that are considered to have stronger IP protection (using the Park-Ginarte Index) are often listed on the Special 301 Report, while others with less protection are not. He even looks at the average of countries on the list and off, and finds that those on the list have higher protection than those off the list:

Given that, Michael looked at the leaked Wikileaks State Department cables, where there are a bunch discussing the Special 301, and quickly notes that it's pretty clear that political considerations were much more important than actual concerns about intellectual property conditions. In short, the Special 301 is just a way to diplomatically slap a country with whom we're having other political issues, in order to give the US leverage on some political point. He quotes State Department cables concerning Taiwan, Saudi Arabia, Bolivia and Norway showing how it's much more about politics.

At some point, it needs to be asked why we have the Special 301 setup at all. It seems designed mainly to piss off other countries, while making Hollywood and Big Pharma feel good. It doesn't seem to do anything beneficial at all.

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]]>as-if-we-didn't-know-thathttps://www.techdirt.com/comment_rss.php?sid=20140612/17435227561Fri, 6 Jun 2014 07:16:00 PDTDOJ Admits It's Still Destroying Evidence In NSA Case; Judge Orders Them (Again) To Stop; DOJ Flips OutMike Masnickhttps://www.techdirt.com/articles/20140605/17055527488/doj-admits-its-still-destroying-evidence-nsa-case-judge-orders-them-again-to-stop-doj-flips-out.shtml
https://www.techdirt.com/articles/20140605/17055527488/doj-admits-its-still-destroying-evidence-nsa-case-judge-orders-them-again-to-stop-doj-flips-out.shtmlknowingly destroying key evidence by pretending that they thought the preservation orders only applied to one kind of spying, and not the kind that was approved by the FISA Court (despite at other times admitting that the surveillance at issue in the case was approved by the FISA Court)? Yeah, so, yesterday, the EFF realized that despite the big kerfuffle this whole thing had caused, the NSA and DOJ were still destroying that evidence, and sprinted over to the court to file for an emergency temporary restraining order on the government.

In its TRO, the Court ordered the government to refrain from any further destruction of
evidence pending final resolution of the parties’ dispute over the government’s evidence
preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers,
agents, servants, employees, and attorneys, and all those in active concert or participation with
them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the
claims at issue in this action, including but not limited to prohibiting the destruction of any
telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2
(emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition
on any evidence destruction remains in effect until the Court has finally decided the evidence
preservation dispute: “The Court extends the temporary restraining order issued on March 10,
2014 until a final order resolving the matter is issued.” ECF No. 206 at 1.

In communications with the government this week, plaintiffs learned to their surprise that
the government is continuing to destroy evidence relating to the mass interception of Internet
communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act.
This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the
content of Internet communications from the Internet “backbone” network of AT&T, as described
in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus....

Ridiculously, the DOJ claimed that it did not believe the original TRO covered internet content interceptions, and thus was still destroying such evidence. It just said it believed the court was still determining if the TRO applied to such evidence. It took very little time for the court to respond, telling the DOJ to file an immediate response and in the meantime to stop destroying the freaking evidence.

On June 5, 2014, the Court received an emergency filing from Plaintiffs in which they
contend that the government may be in violation of the Court’s restraining order. Defendants
shall file a response to Plaintiffs’ emergency filing by no later than 12:00 noon PST on Friday,
June 6, 2014. At that time, the Court shall decide whether and when to have a hearing on this
matter. In the interim, the restraining order remains in effect: Defendants are ordered not to
destroy any documents that may be relevant to the claims at issue in this action, including the
Section 702 materials

This is pretty damn egregious. There is simply no way that the DOJ could properly read the original TRO to mean that it can continue to destroy this evidence. To pretend that's a possible reading, especially given all the clear notifications of both EFF's and the court's concerns, is clearly the DOJ and NSA just playing dumb for the sake of being able to destroy more evidence.

And while the DOJ had until today to file its response, late yesterday it filed a very short response, demanding the judge issue an emergency stay on the TRO it had just issued, saying that complying with it would "cause severe operational consequences."

Undersigned counsel have been advised by the National Security Agency that compliance
with the June 5, 2014 Order would cause severe operational consequences for the National
Security Agency (NSA’s) national security mission, including the possible suspension of the
Section 702 program and potential loss of access to lawfully collected signals intelligence
information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission.

It also promises to file a more complete response today, which we'll try to add here once it's out. This response seems bizarre. It's unclear why an order to not destroy evidence would mean that the Section 702 program would need to be suspended entirely. Either way, EFF lawyers had to stay up late last night, rushing out their own reply to the DOJ's frantic freakout.

It is not credible that, as the government contends, simply refusing to destroy during the
next 18 hours the communications it has intercepted will cause “the possible suspension of the
Section 702 program.”... How can the preservation of these intercepted
communications cause a “loss of access to lawfully collected signals intelligence information”? ...
That information will remain accessible even though it is being preserved.

More fundamentally, the unspoken but unmistakable foundation of the government’s
position is a contention that it never understood before this afternoon that the Court’s TRO
required it to preserve evidence relating to its interception of Internet communications. This, too,
lacks any credibility, especially in light of the extensive discussions between Court and counsel at
the March 19, 2014 hearing on the evidence preservation dispute. The government’s disregard for
the past three months of its obligations under the Court’s TRO should not be retroactively blessed
by granting a stay that permits the government to continue destroying evidence.

I imagine there will be more very soon.

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]]>hey you guyshttps://www.techdirt.com/comment_rss.php?sid=20140605/17055527488Tue, 3 Jun 2014 10:01:47 PDTEFF Tells Court That The NSA Knowingly And Illegally Destroyed Evidence In Key Case Over Bulk SurveillanceMike Masnickhttps://www.techdirt.com/articles/20140530/14381027417/eff-tells-court-that-nsa-illegally-destroyed-evidence-key-case-over-warrantless-wiretapping.shtml
https://www.techdirt.com/articles/20140530/14381027417/eff-tells-court-that-nsa-illegally-destroyed-evidence-key-case-over-warrantless-wiretapping.shtmllegal questions over whether or not the NSA needed to hang onto surveillance data at issue in various lawsuits, or destroy it as per the laws concerning retention of data. Unfortunately, in the process, it became clear that the DOJ misled FISA court Judge Reggie Walton, withholding key information. In response, the DOJ apologized, insisting that it didn't think the data was relevant -- but also very strongly hinting that it used that opportunity to destroy a ton of evidence. However, this appeared to be just the latest in a long history of the NSA/DOJ willfully destroying evidence that was under a preservation order.

The key case where this evidence was destroyed was the EFF's long running Jewel v. NSA case, and the EFF has now told the court about the destruction of evidence, and asked the court to thus assume that the evidence proves, in fact, that EFF's clients were victims of unlawful surveillance. The DOJ/NSA have insisted that they thought that the EFF's lawsuit only covered programs issued under executive authority, rather than programs approved by the FISA Court, but the record in the case shows that the DOJ seems to be making this claim up.

EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF's 2008 case that challenges the government's mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF's brief notes that the government's own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.

"The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don't apply," said EFF Legal Director Cindy Cohn. "Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government."

The full filing is worth reading as it highlights how ridiculous the DOJ's "oh we didn't think that stuff mattered to this case" argument really is. As EFF notes, all the way back in 2010, it had filed a brief that explicitly noted that they were challenging the use of exactly this kind of data.

The filing lists out the history of the government repeatedly destroying relevant information, despite the preservation orders from the court, and despite clear language noting that the government had to preserve exactly this kind of data. The DOJ's argument that it thought the data under FISA-approved programs didn't count seems especially weak, given that the DOJ itself was part of trying to hide that those programs even existed. As the EFF filing notes, the argument seems preposterous in context. For example, at one point, the DOJ claims that it thought EFF didn't mean FISC-approved programs because it talked about "warrantless" surveillance. However, as EFF notes, even FISC-approved programs are still warrantless, because a FISC order is not a warrant.

Even more damning for the DOJ, the EFF filing points out that in the DOJ's own attempts to kill this case under state secrets claims, it said that the activity had been approved by FISC. So, for all the talk about how it had no idea that EFF was interested in FISC-approved surveillance, that's clearly untrue or it wouldn't have invoked FISC as having approved the collection! After listing out numerous examples of government officials making official statements in the case talking about FISC approval and how revealing this would reveal FISC-related state secrets, EFF points out:

The Government cannot have it both ways, as it seeks to do here. It cannot present one understanding of the scope of plaintiffs' claims -- a very broad one -- when asserting state secret privilege, but claim a much narrower understanding when it is destroying evidence.

As EFF points out, when evidence like this is destroyed:

the law presumes that the destroyed evidence goes to the merits of the case, and the burden is on the spoliating party to show that no prejudice resulted." .... After having repeatedly and vociferously claimed that the plaintiffs must produce evidence from the government of individual seizure of their communications and records (as opposed to the boxes of their evidence plaintiffs have long presented), the government cannot meet its burden to show no prejudice has occurred here. Unsurprisingly, it has made no attempt to do so.

And now we wait to see how the DOJ tries to tap dance out of this one.

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]]>because-of-course-they-didhttps://www.techdirt.com/comment_rss.php?sid=20140530/14381027417Thu, 8 May 2014 20:37:02 PDTDumb Criminal Posts Video Of Dumb Crime After Leaving Hospital Injured From DumbnessTimothy Geignerhttps://www.techdirt.com/articles/20140506/08050927134/dumb-criminal-posts-video-crime-hospital-bed-where-hes-recovering-crime.shtml
https://www.techdirt.com/articles/20140506/08050927134/dumb-criminal-posts-video-crime-hospital-bed-where-hes-recovering-crime.shtml
It's been a couple of months, so maybe you thought that there were no more dumb criminals doing dumb things with technology any longer. Well, that was a very silly thought, silly-thought-thinker. You should know by now that nothing will stop the deluge of dumb. This latest is special, however, due to the impressive dedication to stupid by our criminal mastermind. This case is one in which an 18 year old man videotaped himself driving like an idiot on purpose, injured himself to the point of needing an airlift to a hospital, after which he uploaded the video to YouTube -- accurately titling it "Me Driving Like an Idiot"

Robert Charles Kelley IV, 18, driving west, first struck a Toyota sedan with his 1994 Honda on State Road 44 near Jungle Road, around 3:36 p.m. Monday afternoon, police said. He fled the scene of that crash and later would strike three more vehicles that were stopped at a red light at S.R. 44 and Colony Park Road, police said. Two patients from the first crash and one from the second were taken to Bert Fish Medical Center with injuries not considered life-threatening, police said.

Police also mentioned that they were planning on arresting Kelley, because of course they are. At the conclusion of his vehicular rampage, Kelley needed help getting himself removed from his now-destroyed Honda and was taken by helicopter to a hospital. Police had thought his injuries were serious, but he was released the next day. That's apparently when the mood struck Kelley to finally upload the video to YouTube further implicating himself. It features, you guessed it, him driving like an idiot with a soundtrack of, you probably also guessed it, irritating techno music.

Markert said Kelley's filming and uploading of the video falls under the “What were you thinking?” category, but of because the evidence it provided police, he added, “We certainly appreciate it.”

While the original video has since been taken down, you can see clips of it in news reports like the following:

Enjoy those multiple counts of leaving the scene of an accident with injuries, reckless driving, driving without a license, and possibly even intentional battery with a vehicle, son. Here's hoping video of your perp walk ends up on YouTube.

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]]>book-'emhttps://www.techdirt.com/comment_rss.php?sid=20140506/08050927134Tue, 6 May 2014 03:36:46 PDTAustralia's Attorney General Ignores All Evidence And Experts: Decides To Obey Hollywood's Commands On CopyrightMike Masnickhttps://www.techdirt.com/articles/20140505/06183027124/australias-attorney-general-ignores-all-evidence-experts-decides-to-obey-hollywoods-commands-copyright.shtml
https://www.techdirt.com/articles/20140505/06183027124/australias-attorney-general-ignores-all-evidence-experts-decides-to-obey-hollywoods-commands-copyright.shtmlexpected this to happen, but after a long process in which the Australian Law Reform Commission (ALRC) carefully reviewed all sorts of proposals and evidence on copyright reform, and released some sensible proposals, Australia's Attorney General (who is also its Arts Minister apparently), George Brandis, has ignored all of it, preferring to only listen to a Hollywood front group, leading him to push for a three strikes plan and censorship in an attempt to "protect" Hollywood. He does this, even though some of the best research on how terribly ineffective three strikes programs have been comes from Australian scholar Rebecca Giblin.

In other words, despite lots of careful research by independent parties, and plenty of scholarly work to inform the debate, Brandis has decided to ignore all of it, and go with what the MPAA is telling him to do -- and yes, the "Australian Screen Association" is actually run by folks in Hollywood (though it changed its name from AFACT to ASA to try to hide that).

For years, our biggest complaint with copyright policies is the fact that so much of it is entirely faith-based. The movie and recording industries go on big emotional pleas about how "piracy" is destroying their industries (despite record output), and insist that the reason is piracy -- ignoring tons of evidence that this is not the case. There is no doubt that these industries are facing serious transitions, but time and time again, we've seen that those who embrace the transition and (here's the key part) provide more of what the public wants in a convenient fashion tend to do better than they did before. At the same time, merely ratcheting up enforcement and censorship creates massive unintended consequences and little actual benefit for the industries who push for those policies.

Australia's decision to cave to Hollywood on this will be cheered as a victory by the MPAA and its various supporters, but it's a massive loss for everyone. Promoting censorship along with anti-innovation and anti-consumer policies are no way to embrace the future.

Videotape evidence can be overruled by the testimony and after-the-fact interpretation of a police officer, the Indiana Supreme Court ruled last week. In a 6 to 1 decision, justices overruled the state Court of Appeals which reviewed dashcam footage of Joanna S. Robinson driving her Chrysler PT Cruiser at around 1am on October 15, 2011 in Elkhart County and found no evidence of a crime.

In the case being discussed, the officer following Robinson's car observed it veering over the fog line twice, which gave him the reasonable suspicion he needed to pull her over. Once pulled over, Robinson blew a .09 BAC (.01 over the legal limit) and volunteered to the officer that she was also in possession of a small amount of marijuana. During her trial, she attempted to have the evidence suppressed on the basis that the officer did not have the reasonable suspicion needed to pull her over.

The Supreme Court reviewed the dashboard cam recording, concluding that while it may have not showed exactly what the officer claimed (or indeed, any solid evidence that Robinson's driving was impaired), it was clearly inferior to the officer's observational skills and experience.

Deputy Claeys, as he drove down County Road 4 on that October night, was observing Robinson’s vehicle through the lens of his experience and expertise. And when Deputy Claeys testified at the suppression hearing, the trial judge heard his testimony—along with the other witness testimony and evidence, including the video—through the lens of his experience and expertise. Ultimately, that experience and expertise led the trial judge to weigh Deputy Claeys’s testimony more heavily than the video evidence, and we decline Robinson’s invitation to substitute our own judgment for that of the trial court and rebalance the scales in her favor.

Deputy Claeys testified “both passenger side tires were over the fog line” and “completely off the roadway” “twice.”

As the single dissenting opinion notes, the previous court found Claeys' recall of the events suspect.

The trial court summarized the evidence presented, observing that “the officer in this case has testified that defendant drove off the roadway on two occasions.” The court further acknowledged that “[i]t is quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.” But the court recognized that the video did not reflect that the vehicle “actually left the roadway” but only that it “veer[ed] on two occasions onto the white fog line.”

Despite this disparity, the trial court still felt that "veering onto the fog line" was enough reasonable suspicion (for a "well-trained officer") to justify a stop. Judge Rucker points out how ridiculous this assumption is.

The Court of Appeals reviewed numerous cases from other jurisdictions as well as prior Indiana precedent, all of which support the proposition that mere “brief contact with the fog line or swerving within a lane”—without more—is ordinarily insufficient to establish reasonable suspicion of impaired driving [...] I agree and would reiterate the observation that “if failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

Despite the appeals court's conclusions and the deputy's faulty recall, the Indiana Supreme Court agreed with the trial court's finding.

The trial court found, as a matter of fact, that to the extent Deputy Claeys’s testimony conflicted with the video, the former was more reliable than the latter.

While it's certainly true that video itself can be open to the interpretation of its viewers (as is noted in the majority opinion), it's hardly as subjective as a single officer's portrayal of events. What is often depicted as superior instinct and training may actually be nothing more than self-delusion or post facto justification for rights violations. This sets a precedent for Indiana that suggests exculpatory video evidence will be given less weight than the "expert" testimony of law enforcement officers.

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]]>apparently,-LISTENING-is-believinghttps://www.techdirt.com/comment_rss.php?sid=20140405/17142626817Fri, 4 Apr 2014 15:48:16 PDTDOJ Continues To Obstruct Efforts For Megaupload Users To Get Their Files BackMike Masnickhttps://www.techdirt.com/articles/20140404/06325226794/doj-continues-to-obstruct-efforts-megaupload-users-to-get-their-files-back.shtml
https://www.techdirt.com/articles/20140404/06325226794/doj-continues-to-obstruct-efforts-megaupload-users-to-get-their-files-back.shtmlcould be destroyed. We pointed out that this seemed like a clear case of destruction of evidence by the DOJ. First, it seized pretty much all of the assets of a company, prior to any conviction, and then before any actual judicial proceedings, asked for most of those assets -- many of which could include exculpatory evidence -- to be destroyed. It seemed... quite questionable. That resulted in a bit of a legal battle, as the hosting company storing them, Carpathia, asked what it should be doing (since it's suffering from the cost of keeping the servers). Megaupload sought to buy the servers, but the DOJ has blocked that effort. Last we'd heard, the judge had told everyone to work it all out by themselves.

This effort was stopped because the U.S. didn’t want Kim Dotcom to have access to the files. Hoping to get out of this stalemate the Court then suggested that all affected parties should get together and come up with a solution, thus far without success.

“In separate written requests in the past year both Carpathia and Megaupload have asked Magistrate Judge Anderson – who was appointed by Judge O’Grady to mediate the cloud storage server data issue – to preside over follow-up negotiations on data preservation and consumer access,” Rothken tells TF.

“The US DOJ has shown little interest in such negotiations and the Judge has not been inclined to set any additional meetings,” he adds.

The whole situation is bizarre. Individuals who had legitimate content stored on Megaupload are still asking for access to get back their content, but the DOJ doesn't seem to care at all. In fact, it's coming up with increasingly bizarre excuses to justify shutting down an entire business based on the entertainment industry's say so, and seems to have no qualms about how many people this has created massive problems for.

As the Aereo case is about to be heard, and various concerns about its impact on cloud computing are being raised, people should look over at what's happening with Megaupload's servers and be even more concerned. If the broadcasters succeed in redefining what is a "public performance," it's entirely conceivable that the DOJ could choose to do the same to other cloud services you rely on -- and there seems to be no recourse whatsoever.

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]]>because-hollywood-once-told-us-someone-was-dr.-evilhttps://www.techdirt.com/comment_rss.php?sid=20140404/06325226794Thu, 3 Apr 2014 13:55:00 PDTDOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To DefendantsMike Masnickhttps://www.techdirt.com/articles/20140402/12194426777/doj-flips-out-that-evidence-gathered-via-fisa-orders-might-be-made-available-to-defendants.shtml
https://www.techdirt.com/articles/20140402/12194426777/doj-flips-out-that-evidence-gathered-via-fisa-orders-might-be-made-available-to-defendants.shtmlhome grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen.

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted:

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA
materials to the defense, in this case, the Court finds that the disclosure may be necessary. This
finding is not made lightly, and follows a thorough and careful review of the FISA application
and related materials. The Court finds however that an accurate determination of the legality of
the surveillance is best made in this case as part of an adversarial proceeding. The adversarial
process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making
such a determination, the adversarial process is integral to safeguarding the rights of all citizens,
including those charged with a crime. “The right to the effective assistance of counsel is thus the
right of the accused to require the prosecution’s case to survive the crucible of meaningful
adversarial testing.”

But a court’s preference for the adversarial process—a circumstance
that exists in all litigation—cannot serve as a basis for declaring that
disclosure of FISA materials is “necessary to make an accurate determination
of the legality of the surveillance” under the statute. Congress envisioned
that FISA litigation be handled ex parte, in camera, with disclosure the rare
exception.... Yet
the district court’s reasoning would turn that regime on its head. A court
could always say that an adversarial proceeding would be the “best” way to
determine the legality of the FISA collection. To compel disclosure on that
basis would trivialize FISA’s necessity standard and work a sea change in
FISA litigation.

Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that!

Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal:

The district court also misjudged the damage to national security that
could result from disclosing the FISA applications and orders, even to cleared
defense counsel under a protective order, as substantiated by declarations
from the Attorney General of the United States and the Acting Assistant
Director of the FBI for Counterterrorism. A “need-to-know” must exist before
classified information may be disclosed, even to those who possess a security
clearance, and that essential prerequisite is present only where disclosure to
defense counsel is “necessary” for a court to adjudicate the legality of the
FISA collection.

When viewed under the correct “necessity” standard, nothing about the
challenged FISA collection justifies the district court’s outlier decision. As the
classified record makes clear, the ex parte process that the statute provides
readily permits an accurate determination that the FISA collection was
lawful, and the defendant’s allegations to the contrary are unfounded. A court
reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.

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]]>of-course-they-dohttps://www.techdirt.com/comment_rss.php?sid=20140402/12194426777Fri, 21 Mar 2014 13:01:32 PDTJudge Walton Catches The DOJ Withholding Info About NSA Metadata LawsuitsTim Cushinghttps://www.techdirt.com/articles/20140321/12060026649/judge-walton-catches-doj-withholding-info-about-nsa-metadata-lawsuits.shtml
https://www.techdirt.com/articles/20140321/12060026649/judge-walton-catches-doj-withholding-info-about-nsa-metadata-lawsuits.shtml
Another FISC opinion and order has just been released dealing with the NSA's retention of metadata that may be used as evidence in some ongoing lawsuits against the government. The DOJ had originally asked to hold onto the pertinent data past the five-year expiration date because of these pending lawsuits. This request was shot down by FISC judge Reggie Walton, who stated that holding Americans' data past the disposal date put the surveillance programs on shaky Constitutional grounds, while also pointing out that the government's arguments relied on caselaw dealing with the retention of corporate documents, something which clearly wasn't in the same league as data collected on Americans.

Shortly thereafter, a federal court handling two lawsuits (Jewel v. NSA [this is an EFF lawsuit originally filed in 2008], First Unitarian Church v. NSA) centered on NSA domestic surveillance issued a temporary restraining order on the destruction of relevant metadata. This was brought about by the DOJ's announcement that it would begin destroying the relevant data for these two cases based on Walton's February order.

This is where the DOJ starts looking very shady, according to Judge Walton's recounting of the events.

The March 10 Motion further indicated that one of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-0603 (N .D. Cal.) remains in litigation, and the MDL preservation order remains in effect for that case. Additionally, the March 10 Motion stated that the Jewel case, which was filed in 2008, was designated by the District Court as a related action to the Hepting matter, and that Court entered an evidence preservation order in Jewel, based on the MDL evidence preservation order, which remains in effect. LCL The March 10 Motion noted that the plaintiffs in Jewel and First Unitarian contacted the government on February 26, 2014, regarding the relevance of these preservation orders to the February 25 Motion, and made a "specific request" that the government inform the FISC of their existence.

The plaintiffs asked the government to inform the FISC about their existence so that their data could be retained as well. That never happened. Instead, they were forced to file a Temporary Restraining Order in order to prevent this data destruction. This was granted by the circuit court judge and brought to the FISA Court, where Judge Walton ordered the extended retention of data specifically related to these cases. In its response filing, the DOJ had this to say about the plaintiffs who asked them to speak to the FISA court.

A footnote in the March 13 Response indicated that, "[c]ontrary to their representation . . . [the m]ovants did not make a 'specific request' that the government inform this Court about the preservation orders in Jewel and Shubert."

The DOJ included (as an exhibit) email correspondence between it and the plaintiffs of the lawsuit as support for its claim that no request was made. Upon review by Judge Walton, that assertion was false. Walton gives the government an out by claiming it may have just misperceived which surveillance program was being discussed (Section 215 vs. an "executive authority" program -- Section 501), but even then, he points out that the plaintiffs disagreed with the DOJ's reading of the situation.

From this point on, Walton takes the DOJ to task for deceiving the court (whether deliberately or otherwise).

As the govemment is well aware, it has a heightened duty of candor to the Court in ex parte proceedings. Regardless of the government's perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northem District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion. [E-mail Correspondence at 6-7.] The fact that the plaintiffs had this understanding of those preservation orders -- even if the government had a contrary understanding - was material to the FISC's consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court's statement, based on the information provided by the government in the February 25 Motion, that "there is no indication that any of the plaintiffs have sought discovery of this information or made any effort to have it preserved.

The above might be written off as a failure to communicate, but Walton's next paragraph details even more DOJ malfeasance.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of Califomia.

The next filing entered should be rather informative, based on Walton's demands.

It is FURTHER ORDERED that the government shall make a filing with this Court pursuant to Rule 13(a) of the United States Foreign Intelligence Surveillance Court Rules of Procedure Rules of Procedure") no later than April 2, 2014. As part of this filing, the government shall explain why it failed to notify this Court of the preservation orders in Jewel and Shubert and of the plaintiffs' understanding of the scope of those orders, upon learning that plaintiffs' counsel viewed those orders as applying to the Section 501 telephony metadata at issue in the February 25 Motion.

This latest order from Judge Walton shows that the government wants to destroy data that might be used as evidence. There was some back-and-forth previous to this, but the DOJ probably had a good idea what Judge Walton would say back in February when it showed up to ask to hold on to domestic surveillance records indefinitely, deploying civil litigation guidelines and common law requirements as its only rhetorical weapons. Walton refused and the DOJ went happily off to tell plaintiffs that the FISA court had overridden their existing preservation orders. If the plaintiffs hadn't asked for a temporary restraining order, it might have gotten away with it.

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]]>I-may-actually-miss-this-guy-once-he's-gonehttps://www.techdirt.com/comment_rss.php?sid=20140321/12060026649Thu, 20 Mar 2014 15:59:00 PDTNew Zealand Supreme Court Says DOJ Doesn't Have To Provide Its Evidence In Megaupload Extradition CaseMike Masnickhttps://www.techdirt.com/articles/20140320/15301426641/new-zealand-supreme-court-says-doj-doesnt-have-to-provide-its-evidence-megaupload-extradition-case.shtml
https://www.techdirt.com/articles/20140320/15301426641/new-zealand-supreme-court-says-doj-doesnt-have-to-provide-its-evidence-megaupload-extradition-case.shtmlprovide Kim Dotcom and others involved in Megaupload with the actual evidence being used against them for the extradition trial, an appeals court overturned those rulings and now the New Zealand Supreme Court has agreed in rejecting the request. While the chief judge dissented, the majority found that the extradition treaty does not require the country that has filed the charges against the individuals to provide the information and that the New Zealand courts have no real authority to order the US DOJ to provide the evidence. It does seem rather ridiculous that someone can be sent halfway around the world to face criminal charges without first being able to see the evidence against them, but that's apparently the law in New Zealand. They might want to fix that.

Either way, the actual extradition trial was recently pushed back until July (it had been scheduled to start in a few weeks). Seems quite bizarre that they're only just getting to the trial over extradition nearly two and a half years after Megaupload was seized and shut down. The judicial process isn't exactly known for its speed, which is kind of crazy when you realize how quickly (and with such flimsy evidence) DOJ and New Zealand officials acted to arrest Kim Dotcom and his colleagues.

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]]>blind-justicehttps://www.techdirt.com/comment_rss.php?sid=20140320/15301426641Tue, 4 Feb 2014 12:18:55 PSTNew Zealand Spy Agency Deleted Evidence About Its Illegal Spying On Kim DotcomMike Masnickhttps://www.techdirt.com/articles/20140204/07522126085/new-zealand-spy-agency-deleted-evidence-about-its-illegal-spying-kim-dotcom.shtml
https://www.techdirt.com/articles/20140204/07522126085/new-zealand-spy-agency-deleted-evidence-about-its-illegal-spying-kim-dotcom.shtmlillegally spied on Kim Dotcom and other New Zealand residents and citizens -- and the New Zealand government then decided to try to hide that. While the police agreed that the spying was illegal, they declined to do anything about it, so Dotcom sued the government himself.

The latest news in this: GCSB appears to have deleted key evidence in the case in a hamfisted attempt to cover up its illegal activities. Even more ridiculous, GCSB is trying to cover this up by claiming that the material had "aged off" -- implying that it was deleted automatically. New Zealand Prime Minister John Key claims that they had to delete the information under the law.

Of course, there are a few problems with that. The first is that under New Zealand law, like most countries these days, parties have an obligation to preserve documents likely to be necessary in a legal case. But, even more damning is that there's video of John Key in the New Zealand Parliament trying to defend against an earlier claim that GCSB had deleted some evidence by insisting that GCSB does not delete anything ever:

In the video, he notes: "This is a spy agency. We don't delete things. We archive them. And they went right back to the ultimate source document, and asked themselves the question: Has there ever been a deletion? And the answer was NO!!" And yet now he's claiming that it's normal everyday policy to delete key evidence?